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Despite claims to the contrary by Annex 1 countries, developing countries have a strong legal position in the Ad-Hoc Working Group on Further Commitments for Annex 1 Parties under the Kyoto Protocol.
 
As Kyoto Parties are legally bound to establish further commitments, these discussions should not be linked with discussions on Long-Term Cooperative Action under the Convention or elsewhere. Nor should they be used to extract further concessions from developing countries in discussions under the Convention or Kyoto Protocol.
 
Under the Kyoto Protocol, Parties are clearly bound to establish second and subsequent commitment periods for Annex 1 countries.  Article 3.9 provides that “Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7” (emphasis added).
 
The position of developing countries is particularly strong as amendments can “as a last resort be adopted by a three-fourths majority vote of the Parties present and voting”, in the event that Parties cannot agree at an ordinary CMP meeting (Article 21 and 20). 
 
Moreover, if Annex 1 Parties fail to meet their commitments in the first commitment period, then the difference “shall, on request of that Party, be added to the assigned amount for that Party for subsequent commitment periods” (Article 3.13).  It is therefore clear that in future commitment periods Annex 1 countries must have “assigned amounts” which they are bound to reduce.
 
The Kyoto Protocol also provides that existing CMP decisions regarding emissions from agricultural soils and land-use change and forestry “shall apply in the second and subsequent commitment periods” (emphasis added), demonstrating the intention of Kyoto Parties to a continuation of the existing structure and form of Annex 1 Parties’ commitments in future commitment periods.
 
It is thus clear from the Kyoto Protocol that its Parties are legally bound to agree a second period following the conclusion of the 2008-2012 first commitment period.  Moreover, these commitments should be the same, or substantially similar, to those in the first commitment period (not least so assigned amounts can be added in the event of a failure to meet commitments during the first period, and to ensure that relevant CMP decisions continue to apply). 
 
These are existing treaty obligations. Developing countries are thus under no obligation to make additional concessions – in a discussion on future Long-Term Cooperative Action under the Convention or elsewhere – to ensure these existing binding commitments are honoured by Annex 1 Parties to the Kyoto Protocol.  Nor are they under any obligation to “structural changes” or other revisions within any second commitment period that are inconsistent with existing CMP decisions.

Review of legal status of Annex 1 Parties obligations for second and subsequent commitment period under Kyoto Protocol
 
 
This note summarizes the main provisions of the Kyoto Protocol relating to the first, second and subsequent commitment periods for emissions reductions by Annex 1 Parties, and provides preliminary views on the legal status of these provisions under the Kyoto Protocol.
 
Relevant legal provisions
 
Article 3 sets out the obligations of Annex 1 Parties relating to quantified emission limitation and reduction commitments under the Kyoto Protocol. Article 3.1 provides:
The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.
The assigned amount of each Annex 1 Party’s commitment during the first commitment period is established in Article 3.7 (and associated annexes) which provides:
 
In the first quantified emission limitation and reduction commitment period, from 2008 to 2012, the assigned amount for each Party included in Annex I shall be equal to the percentage inscribed for it in Annex B of its aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A in 1990.
 
The obligations to adopt commitments for Annex 1 Parties for a second and subsequent commitment periods is established in Article 3.9.
Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the consideration of such commitments at least seven years before the end of the first commitment period referred to in paragraph 1 above.
Article 21 sets out the procedure for establishing and amending Annexes to the Kyoto Protocol, including those relating to Annex 1 Parties emission reduction commitments. Article 21.1 provides:
 
Annexes to this Protocol shall form an integral part thereof and, unless otherwise expressly provided, a reference to this Protocol constitutes at the same time a reference to any annexes thereto.
 
Article 21.7 provides that amendments to Annexes A and B will be adopted using the same procedure as for amendments to the Protocol:
 
Amendments to Annexes A and B to this Protocol shall be adopted and enter into force in accordance with the procedure set out in Article 20, provided that any amendment to Annex B shall be adopted only with the written consent of the Party concerned.
 
Article 20, in turn, provides that “amendments to this Protocol shall be adopted at an ordinary session of the Conference of the Parties serving as the meeting of the Parties to this Protocol” (Article 20.2).
 
Article 20.3 provides:
 
The Parties shall make every effort to reach agreement on any proposed amendment to this Protocol by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted amendment shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance.
 
Article 20.5 provides:
 
The amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits with the Depositary its instrument of acceptance of the said amendment.
 
Interpretation of legal provisions
 
In accordance with international law, international agreements are to be interpreted in accordance with their ordinary language, in light of their context and as well as the object and purpose of the treaty (Vienna Convention on the Law of Treaties).
 
Article 3 establishes obligations regarding the quantified emission limitation and reductions required for Annex 1 Parties to the Kyoto Protocol.  The Protocol clearly establishes the period of the first commitment period (2008-2012), and requires each Annex 1 Party to have made “demonstrable progress in achieving its commitments” by as early as 2005 (Article 3.2). 
 
The Protocol also includes clear language regarding second and subsequent commitment periods, stating:
 
Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7 (emphasis added)
 
Use of the word “shall” indicates the intention of the Parties that these obligations have legally binding effect, and is consistent with the use of the term elsewhere in the UNFCCC and Kyoto Protocol and in other international agreements (e.g. including obligations relating to the first commitment period, which are widely regarded by Parties as legally binding).
 
The Kyoto Protocol provides that consideration of future commitments should be initiated well before the end of the first period:
 
The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the consideration of such commitments at least seven years before the end of the first commitment period referred to in paragraph 1 above (emphasis added).
 
Again, use of the term “shall” indicates the intention of the Parties for these commitments to be legally binding in effect. The Kyoto Protocol also calls for early initiation of consideration of these future commitment periods (seven years before 2012), which also suggests that commitment periods are intended to run contiguously, a conclusion that is consistent with relevant CMP decisions and the actions of the Parties.
 
The binding nature of the obligation to establish subsequent commitment periods is further supported by Article 3.13, which establishes the consequences for an Annex 1 party of failing to meet their emissions reduction targets:
 
If the emissions of a Party included in Annex I in a commitment period are less than its assigned amount under this Article, this difference shall, on request of that Party, be added to the assigned amount for that Party for subsequent commitment periods.
 
It is difficult to see how this provision would provide an effective measure for addressing a failure to meet emissions reduction targets in an initial commitment period if agreeing second and subsequent commitment periods were not binding in legal effect.
 
The Kyoto Protocol also reflects the Parties’ intention that decisions by the CMP will bind a second and subsequent commitment period.  Article 3.4, for example, provides that CMP decisions regarding “modalities, rules and guidelines” regarding emissions relating to “agricultural soils and the land-use change and forestry categories” “shall apply in the second and subsequent commitment periods” (emphasis added).  Again, in this provision Parties to the Kyoto Protocol have used language suggesting legally binding obligations relating to second and subsequent commitment periods.
 
Together, these provisions – relating to the nature and timing of subsequent commitment periods, the linking of commitment periods in cases of failure to meet emission reduction commitments, and the continuity of CMP decisions into second and subsequent commitment periods as well as consistent use of the legally binding term “shall” in each of these contexts – all suggest that negotiating a second commitment period is a legally binding obligation of Parties to the Kyoto Protocol.
 
It is also notable that, although the obligations set out in Article 3 specify emission reduction obligations relating to Annex 1 Parties, the broader obligation to agree a second and subsequent commitment period for Annex 1 Parties rests with all Parties to the Kyoto Protocol.
 
These obligations must be “adopted at an ordinary session of the Conference of the Parties serving as the meeting of the Parties to this Protocol” (Article 20.1) and “if all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting” (Article 20.3)
 
Failure to comply with these provisions – for example by failing to negotiate and agree a second commitment period through the Ad Hoc Working Group on Further Commitments of Annex 1 Parties under the Kyoto Protocol – would thus constitute derogation by all Parties to the Kyoto Protocol of their legally binding obligations, not merely by Annex 1 countries.